Starks v. State

• Decision Date: 20 September 1991
• Docket Number: 4 Div. 381
• Parties: Henry STARKS, alias Henry Russaw v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 187

594 So.2d 187

Henry STARKS, alias Henry Russaw v. STATE.

4 Div. 381.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

Rehearing Denied Oct. 25, 1991.

Certiorari Denied Feb. 14, 1992

Alabama Supreme Court 1910321.

Joel Lee Williams and Timothy J. Magee, Troy, for appellant.

Don Siegelman, Atty., and Martha Gail Ingram and Sandra J. Stewart, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The appellant, Henry Starks, was indicted and convicted for the capital offense of murder during a robbery, as defined in Ala.Code 1975, § 13A-5-40(a)(2). At the penalty stage, the jury, by a vote of eight to four, recommended imprisonment for life without possibility of parole. The trial judge declined to accept this recommendation and sentenced the appellant to death.

On the evening of March 17, 1988, Gerald Benton was robbed and killed at his place of business, Tri-County Grocery, in Pike County, Alabama. The pathologist testified that Benton's death was caused by "multiple blunt force injuries to the back of the head and massive damage to the brain." Five young men were indicted for the capital murder of Benton. Only two of the five, the appellant and his uncle, Willie Louis Russaw, were actually tried for the capital offense. The other three, Timmy Adams, Ronald Grey, and Stacey Grey, agreed to testify against the appellant and Russaw in exchange for a reduction in the charges against them. (See Part III below.)

Adams testified at the appellant's trial that the five men went to Benton's store with the avowed intention "to steal something." Adams, Ronald Grey, Russaw, and the appellant went up to the store, while Stacey Grey remained in the car. According to Adams, the appellant entered the store first, then "Willie [Russaw] ran in and went around the counter and throwed Mr. Benton down on a sack of potatoes." The appellant then "went to the corner and got an ax handle" with which he hit Benton. Adams stated on cross-examination that he saw the appellant hit Benton only once.

Ronald Grey testified that he heard a "racket" after the others ¹ had entered the store. He then looked through the glass door and saw Benton lying on the floor. The appellant was standing over Benton with an ax handle in his hand, but Ronald did not see him strike Benton with it. Both Adams and Ronald testified that the appellant left the store with the ax handle. Both witnesses also testified that Russaw brought to the car a money bag or pouch belonging to Benton ² and the ax.

The appellant did not testify at trial, although he did present an alibi defense through the testimony of others.

I

The appellant raises two issues in which he contends that the trial court committed plain error in charging the jury during the guilt phase of his trial. He argues that the trial court (1) failed to properly instruct the jury on the intent required to convict him of capital murder and (2) inadequately instructed the jury on the lesser included offenses of intentional noncapital murder and felony murder. Because these issues are interwoven, we will discuss them together.

During the charge conference, the trial judge stated that he would give the appellant's requested charge number 6. ³ The prosecutor objected to this requested charge and the following occurred:

"THE COURT: Number 6 just defines in the first paragraph is murder [sic]. Simple statement of what the Code says. The second paragraph is a statement of felony murder, I believe. I believe that is where you are coming from.

"MR. MAGEE [defense counsel]: Yes, Your Honor.

"THE COURT: Felony murder: A person who causes the death of another person while in the attempt to, the commission of, or immediate flight from a heinous offense seriously dangerous to the life of another.

"So you see that could be applicable if they don't find [the defendant] guilty of aggravated murder. Is that where you are coming from, Mr. Magee?

"MR. MAGEE: Yes, Your Honor."

R. 981-83 (emphasis added).

There was no further discussion of requested charge number 6 per se. However, at the end of the charge conference, the following occurred:

"THE COURT: And I am going to fix in my own handwriting, if it is all right with you all, the possible forms of verdict. We, the jury, find the defendant not guilty, which will be explained to them that if they don't believe the evidence beyond a reasonable doubt that the defendant is guilty of aggravated murder as alleged or any lesser included offense of murder, then that verdict would be apropos. Also, we, the jury, find the defendant guilty of aggravated murder as charged in the indictment; or we, the jury, find the defendant guilty of the lesser included offense of murder.

"That's about all I can do. And as we discussed yesterday, since you all's approach has been alibi, I was elsewhere, I did not commit, then there is no lesser [included] charge on manslaughter or criminal negligent homicide. So we are locked in with just two possible offenses or not guilty.

"Do you all agree or disagree?

"MR. SMITH [prosecutor]: We agree, Your Honor.

"MR. WILLIAMS [defense counsel]: Yes, sir.

"....

"MR. WILLIAMS: Can I ask a point about what you were just saying about we are locked into two?

"THE COURT: We are locked into two offenses.

"MR. WILLIAMS: Two offenses, okay. Not two verdicts.

"THE COURT: Aggravated murder or a lesser offense of murder.

"MR. WILLIAMS: Or not guilty.

"THE COURT: Or not guilty. We have got a good understanding...."

R. 990-91 (emphasis added).

In charging the jury, the trial judge made a few introductory remarks, then read the indictment. After informing the jury that the appellant pleaded not guilty to this indictment and that a capital offense is one for which the defendant is to be punished by death or by imprisonment for life without parole, the trial judge stated:

"The defendant is charged with the following capital offense, murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant. The elements of capital murder charged in this indictment are in substance: In order to sustain a conviction under the subsection that I have read to you from capital murder-robbery, the State must prove beyond a reasonable doubt: 1. A robbery in the first degree or an attempt thereof as will be defined to you. 2. A murder as will be defined to you, and that the murder was committed during the robbery or attempted robbery, meaning that the murder was committed in the course of or in the connection with the commission of or in the immediate flight from the commission of the robbery or attempted robbery in the first degree.

"The words we have just used to you indicate what must be proven, and in any homicide case of which robbery-aggravated murder, as we have said to you, the State to prove the corpus delicti of the offense beyond a reasonable doubt [sic]. To establish the corpus delicti, the elements that we have read to you, it is incumbent upon the State to prove beyond a reasonable doubt facts and circumstances that the death of Benton has occurred, which we have referred to as the corpus, and the death of [a] human being was caused by the criminal agency, i.e., the delicti of some person, namely, the defendant as alleged in the indictment." (Emphasis added.)

R. 1034-35.

Immediately thereafter, the trial judge charged the jury on the general legal principles applicable in criminal cases, such as the presumption of innocence, expert testimony, circumstantial evidence, the burden of proof, and reasonable doubt. The trial court then stated:

"As we have said, this defendant is charged with the capital offense as defined, one which would allow punishment by a sentence of death or life imprisonment without parole. And it is charged in the indictment in substance, murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.

"We are going to discuss with you the nature of those terms. First, we are going to define to you what murder is. Then we are going to what robbery in the first degree is and an attempt.

"Murder in this state is defined as this: A person commits the crime of murder if with intent to cause the death of another person he causes the death of that person. That's a few words, but it is the definition of murder.

"And again, we further elaborate by saying a person commits the crime of murder if he causes the death of another person and in performing the act or acts which caused the death of the person, he intends to kill that person; or if he commits or attempts to commit robbery and in the course of and in the furtherance of that crime that he is committing or attempting to commit, or in the immediate flight therefrom, he or another participant causes the death of any person.

"In this case there is one count contained in the indictment charging the defendant with the offense of murder occurring in the commission or attempted commission of a dangerous felony. You must consider the evidence as to the charge, and determine whether the defendant has been proved guilty of the offense charged beyond a reasonable doubt. If you find from your consideration of all the evidence that the State has proved each of the necessary elements of the offense charged beyond a reasonable doubt, then your verdict should be that you find the defendant guilty of the offense of murder occurring in the commission or attempted commission of a dangerous felony as charged in the indictment.

"If, on the other hand, from your consideration of the evidence, or the lack of evidence, you are not convinced that the State has proved each of the essential elements of the offense of murder occurring in the commission or attempted commission of a dangerous felony beyond a reasonable doubt, then you must find the defendant not guilty of the offense of murder occurring in the commission or attempted commission of a dangerous felony.

"Embraced within the offense of murder occurring in the...